NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1049-16T1

MARY C. DUTTON, as 

Administratrix Ad Prosequendum 

of the ESTATE OF PATRICK E. 

DUTTON,

Plaintiff-Respondent,

v.

STEPHEN V. RANDO,

Defendant-Appellant.

_____________________________

Argued December 4, 2018 – Decided February 26, 2019

Before Judges Sabatino, Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, Law 

Division, Atlantic County, Docket No. L-6051-13.

Robert M. Kaplan argued the cause for appellant 

(Margolis Edelstein, attorneys; Robert M. Kaplan, of 

counsel and on the brief).

Michael A. Gibson argued the cause for respondent

(D'Arcy Johnson Day, attorneys; Michael A. Gibson, 

on the brief).

The opinion of the court was delivered by

MITTERHOFF, J.S.C. (temporarily assigned).

APPROVED FOR PUBLICATION

February 26, 2019

APPELLATE DIVISION
2

A-1049-16T1

This appeal arises from a tragic highway collision in which defendant 

Stephen Rando's sports utility vehicle ("SUV") fatally struck plaintiff's son, 

Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found 

that defendant was sixty percent responsible for the accident while Patrick1 was 

responsible for the remaining forty percent. The jury awarded plaintiff Mary 

Dutton, representing her son's estate, $500,000 in wrongful death damages and 

$108,000 in survivorship damages. The trial court entered judgment in the sum 

of $364,800 in damages and additional interest, fees, and costs.

Defendant appeals from the judgment memorializing the verdict and from 

the trial court's order denying his motion for a new trial. Among other things, 

defendant contends that the jury's award of wrongful death damages is 

unsupported by the evidence, particularly without any expert testimony to 

substantiate the pecuniary value of the loss of Patrick's advice, guidance, and 

companionship. We reject defendant's contention and reaffirm the longstanding principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 

32-33 (1989), that expert testimony is not required to establish the pecuniary 

 

1

 Because the decedent and multiple witnesses share the same last names, we 

will refer to them by their first names. We intend no disrespect. 
3

A-1049-16T1

value of such services in claims for wrongful death. For the reasons that follow, 

we affirm. 

I.

On October 2, 2013, plaintiff filed a civil action under the New Jersey 

Survivor's Act, N.J.S.A. 2A:15-3, and the New Jersey Wrongful Death Act, 

N.J.S.A. 2A:31-1 to -6, alleging that defendant's negligent operation of his 

motor vehicle caused Patrick's death. 

On August 15, 2016, defendant filed a pretrial motion in limine, arguing 

that plaintiff's wrongful death claim was barred because plaintiff was not 

planning to introduce any evidence substantiating the replacement cost of 

Patrick's advice, guidance, and companionship. The trial court denied the 

motion, finding it premature to decide whether plaintiff had presented a factual 

basis for damages. 

A jury trial took place between August 16 and August 24, 2016. We recite 

the relevant facts from the testimony and evidence presented at trial.

Liability-Related Proofs 

On the evening of February 26, 2012 defendant, an off-duty Atlantic City 

police officer, was driving his SUV in the left lane on the eastbound side of 

Black Horse Pike in Egg Harbor Township, with his wife, Jennifer Rando, sitting 
4

A-1049-16T1

in the passenger seat. Black Horse Pike is a four-lane highway with two 

eastbound and two westbound lines that are divided by a concrete, grassy 

median. A two-foot space separates the median from the fog line of the left lane 

on the eastbound side of the road. The posted speed limit is fifty miles per hour. 

It was dark that night, ambient lighting was minimal, and the roads were damp 

and filled with puddles from an earlier thunderstorm. 

Indisputably, the Rando's SUV struck Patrick that night while the 

decedent was on his bicycle at or near an intersection between Black Horse Pike 

and Tower Avenue, where there is a forty-six-foot gap between the concrete 

medians dividing the highway. The impact sent Patrick several feet in the air 

until he came to rest on the westbound portion of Black Horse Pike where he

bled to death on the road. Patrick was nineteen years old at the time of the 

accident. At trial, the nature of the collision and how it occurred was heavily 

disputed.

When Officer Kevin Devlin, of the Egg Harbor Township Police 

Department, responded to investigate the collision that night, he observed 

Patrick laying on the westbound side of the road with the remains of the bicycle 

and other debris scattered throughout the left lane of the eastbound road. Officer 

Devlin concluded that defendant's SUV hit the bicycle while Patrick was 
5

A-1049-16T1

traveling in a westerly direction in the left-hand travel lane of Black Horse Pike 

eastbound. In Devlin's view, the evidence did not support that the SUV had 

swerved prior to the collision. Based on the scuff marks on the road, Devlin 

determined the impact projected Patrick in a northeasterly direction until his 

body came to rest on the westbound side of the road. 

Plaintiff’s expert, Dr. Steven Batterman, testified that the physical 

evidence did not support Officer Devlin's conclusion that a head-on collision 

occurred in the left lane of the eastbound road. Instead, he believed that the 

vehicles were perpendicular at the point of impact and that the collision occurred 

in the center of the intersection in the gap between the concrete medians. 

Batterman noted the projectile direction of debris from the collision was 

northeast and that the damage to the SUV was primarily relegated to the front 

left wheel, headlights, and fender. The lack of damage to the windshield of the 

SUV, in Batterman's opinion, also weighed against the possibility that the front 

of the vehicle hit Patrick head-on. Based on the braking distance of the SUV 

and the amount of damage caused, Batterman believed defendant was traveling 

between sixty and sixty-five miles per hour prior to impact in an area where the 

speed limit was fifty. Batterman concluded that defendant was inattentive, 
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A-1049-16T1

failed to observe Patrick, and that "for reasons unknown" the SUV swerved to 

the left, hitting both Patrick and the bicycle.

William Meyer, the defense's accident reconstruction expert, disagreed 

with Batterman about the point of impact, believing, as Officer Devlin did, that 

the collision occurred in the left lane of Black Horse Pike eastbound. Because 

the damage to the bicycle was localized to the front section, Meyer disagreed 

with Batterman that the vehicles were perpendicular at the point of impact and 

concluded that Patrick had entered defendant's lane, traveling at a southwest 

angle. In Meyer’s opinion, defendant did not have enough time to observe and 

react to Patrick to avoid the collision. 

Defendant testified that he never saw Patrick before he heard and felt the 

impact of the collision. Jennifer Rando testified that she did see Patrick but only 

in the moment immediately prior to impact when she had turned to speak to her 

husband. She attempted to yell to alert him, but it was too late to avoid impact.

Apart from the Randos, the only testifying witness who directly observed 

the collision was Gary Maisano, who stated that he was driving on the eastbound 

side of Black Horse Pike and drove past Patrick as the latter stood on the median, 

"straddling" his bicycle with his feet on the ground, stationary. Maisano 

testified that Patrick was perpendicular to Maisano's vehicle, facing south. 
7

A-1049-16T1

Immediately after passing Patrick, from his left side view mirror, Maisano 

observed Patrick's silhouette cross in front of a car just before a loud impact.

April Roadside, with her passenger, Tamara Baum, was driving in the 

right lane of the eastbound side of the road behind defendant's SUV prior to the 

crash. Roadside and Baum both testified that the SUV suddenly swerved left 

and, immediately afterwards, sparks and debris flew towards them, forcing 

Roadside to maneuver their car to avoid being hit. 

Karen Carboni saw Patrick traveling on Black Horse Pike prior to the 

accident. Carboni testified that she was driving in the right lane of the eastbound 

side of the highway when part of Patrick's bicycle came into her lane of travel, 

causing her to quickly veer left to avoid striking him. Carboni did not see 

Patrick until she was a car length and a half behind him. Patrick had been 

dressed in dark clothing and had no visible reflectors on his bicycle, leading 

Carboni to comment to her daughter seated next to her that Patrick's manner of 

travel was "very dangerous." Carboni did not see or hear the collision.

Damages-Related Proofs 

Plaintiff presented testimony regarding her relationship with Patrick. 

Patrick's aunt Irene testified that Patrick had been living with her in the year 

prior to his death, while plaintiff was living in a homeless shelter. Patrick's 
8

A-1049-16T1

older brother Brandon testified that Patrick and he had been putting aside money 

every week to buy plaintiff a house or apartment and that Patrick had been 

saving between twenty and fifty dollars per paycheck to that end. Irene mostly 

corroborated Brandon's account, though she recalled that Patrick had been 

saving between fifty and seventy-five dollars per week and that he had intended 

to buy a car before purchasing a family home. Irene also recounted that Patrick 

was outgoing, helpful, and a hard worker with a good reputation at his two jobs.

Plaintiff testified that the companionship Patrick provided her was 

"definitely one of the important things" in her life. Plaintiff and Patrick had 

been speaking over the phone on a nightly basis and saw each other once or 

twice per week to have meals together, go to the park, or walk the boardwalk, 

among other activities. Patrick had comforted plaintiff with his words, sense of 

humor, and displays of affection. Plaintiff attested that these interactions with 

her late son had given her "a whole different outlook on life" and that Patrick 

"lifted [her] up even when the clouds were real grey."

Plaintiff also testified that she probably would not have accepted money 

from either of her sons, because, as their mother, she felt it her duty to help them 

rather than accept help from them. Though her family offered for plaintiff to 
9

A-1049-16T1

stay with them, plaintiff refused, because, in her words, she was "stubborn" and 

"didn't want to burden" them. 

At the close of plaintiff's case-in-chief, defendant moved for involuntary 

dismissal of the wrongful death claim, renewing the argument that plaintiff had 

not provided any evidence of the pecuniary value of the services Patrick 

provided plaintiff and that no reasonable juror could find that plaintiff had 

established proof of damages. The court denied the motion. 

The Jury Charge, Verdict, and New Trial Motion

In the final charge to the jury before deliberation, the trial judge read the 

model jury charge on wrongful death without objection from either party. 

Among other things, the model charge directs juries: not to consider either 

emotional distress plaintiff may have suffered as a result of the decedent's death 

or emotional satisfaction plaintiff may have derived from the decedent's 

companionship; to limit the damages to plaintiff's financial loss from the death, 

including the value of companionship services that Patrick would have provided 

to plaintiff for the remaining years of her life, had he survived; to estimate the 

reasonable value of the companionship services provided by determining the 

value of substantially similar services provided "by paid companions or 

homemakers who are often hired by the aged or infirm or . . . by nurses or 
10 A-1049-16T1

practical nurses" and to consider that "future losses cannot go beyond the point 

when it is expected that [plaintiff] will survive." See Model Jury Charge (Civil), 

8.43, "Wrongful Death" (March 2010). In accordance with the model charge, 

the court advised the jury that plaintiff's anticipated life expectancy was 29.4 

years. 

On the second day of deliberations, the jury asked the court for an 

"explanation/clarification of question number 7," which was the question on the 

verdict sheet pertaining to wrongful death damages. With no party objecting, 

the trial judge once again issued the wrongful death model charge.

On the same afternoon, the jury reached its verdict, finding that defendant 

and Patrick were both negligent and that each proximately caused the collision, 

with sixty percent of the liability residing with defendant and forty percent with 

Patrick. The jury awarded plaintiff a gross sum of $108,000 for Patrick's 

conscious pain and suffering on the Survivor's Act claim and a gross sum of 

$500,000 for the pecuniary loss of Patrick's advice, counsel, and companionship 

on the Wrongful Death Act claim. The court molded the awards to the sum of 

$364,800 to reflect decedent's comparative fault. 

Defendant moved for a new trial, which the trial court denied on 

September 30, 2016. On the same day, the court entered an order for judgment, 
11 A-1049-16T1

finding defendant liable to plaintiff in the molded sum of $364,800 in damages. 

Having found that the jury verdict was more than 120% of the claimant's offer 

of judgment, pursuant to Rule 4:58-2, the court awarded an additional 

$31,207.89 in accrued interest, $80,162.50 in attorney fees, and $20,331.06 in 

litigation costs, resulting in a total award and final judgment of $496,501.45. 

This appeal followed. On appeal, defendant raises the following points 

for our review:

I. The evidence clearly established that the 

defendant was not at fault for the happening of 

plaintiff's decedent's accident – much less a 

finding that defendant's fault was greater than 

that of plaintiff's decedent – therefore the only 

explanation for the jury's verdict is sympathy, 

bias, pity and passion and the trial court erred in 

not vacating the jury's liability verdict.

II. As plaintiff failed to present her wrongful death 

claim in a manner which would permit the jury to 

fashion an award for the pecuniary value of 

plaintiff's loss of advice, counsel and 

companionship without speculating, the trial 

court erred in permitting the issue to go to the 

jury and erred in failing to vacate the jury's 

ultimate award of damages. 

Plaintiff has not cross-appealed on any issues. 
12 A-1049-16T1

II.

A. 

Turning to defendant's first point, we find that the trial court did not err in 

denying defendant's motion for a new trial on liability. "The standard of review 

on appeal from decisions on motions for a new trial is the same as that governing 

the trial judge—whether there was a miscarriage of justice under the law." Risko 

v. Thompson Muller Auto. Grp., 206 N.J. 506, 522 (2011); see also R. 4:49-1(a) 

("The trial judge shall grant the motion [for a new trial] if, having due regard to 

the opportunity of the jury to pass upon the credibility of the witnesses, it clearly 

and convincingly appears that there was a miscarriage of justice under the 

law."). 

In this regard, "[a] jury verdict is entitled to considerable deference[.]" 

Risko, 206 N.J. at 521. "On a motion for a new trial, all evidence supporting 

the verdict must be accepted as true, and all reasonable inferences must be drawn 

in favor of upholding the verdict." Boryszewski ex rel. Boryszewski v. Burke, 

380 N.J. Super. 361, 391 (App. Div. 2005). "[A] trial court should not interfere 

with a jury verdict unless the verdict is clearly against the weight of the 

evidence." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). To overturn a jury 

verdict, "[t]he verdict must shock the judicial conscience." Ibid. 
13 A-1049-16T1

Applying this deferential standard of review, we find that the jury's 

liability verdict neither shocks the judicial conscience nor amounts to a 

miscarriage of justice. In denying the motion for a new trial, the trial court held 

that the jury's verdict regarding defendant's apportioned liability was "not 

clearly and convincingly contrary to the weight of the evidence." The court 

reasoned: 

Witnesses testified as to the decedent's visibility and 

location, as well Defendant's actions, such that the 

jury's finding of Defendant's 60% liability for the 

accident would not be clearly and convincingly 

contrary to the weight of the evidence. Specifically, 

other vehicle operators and Defendant's passenger 

visibly saw decedent prior to the collision, one witness 

testified that the decedent was on the median prior to 

the collision and not in Defendant's lane of traffic, and 

a further witness testified to seeing Defendant's vehicle 

swerve toward the median prior to the collision. In light 

of such facts, it would not be unreasonable for a 

factfinder to find liability as the jury in this case did, 

and thus this argument fails.

Having reviewed the record, we conclude that the trial judge's findings

and reasoning are amply supported by the record. We therefore affirm the trial 

court's order denying defendant's motion for a new trial on liability. 

B.

We next address defendant's argument that the jury's award of wrongful 

death damages is unsupported by any evidence that would permit the jury to 
14 A-1049-16T1

fashion an award for the pecuniary value of plaintiff's loss of advice, counsel 

and companionship. Specifically, defendant contends the trial court erred in 

denying his motion for an involuntary dismissal of plaintiff's wrongful death 

claim at the close of plaintiff's case-in-chief and in refusing to vacate the jury's 

verdict awarding a gross sum of $500,000 in wrongful death damages. 

Defendant argues that either expert or other specific testimony was required as 

a matter of law to substantiate the economic value of Patrick's lost 

companionship. In the absence of this evidence, defendant claims, the verdict 

could only have been premised on "pure speculation coupled with sympathy, 

passion and prejudice." 

In addressing defendant's arguments, we first consider the background of

New Jersey's Wrongful Death Act. When a defendant is found liable under the 

Wrongful Death Act for negligently causing a person's death, the jury may award 

"such damages as they shall deem fair and just with reference to the pecuniary 

injuries resulting from such death, together with the hospital, medical and 

funeral expenses incurred for the deceased, to the persons entitled to any 

intestate personal property of the decedent." N.J.S.A. 2A:31-5. 

As no civil remedy for wrongful death existed under the common law, see 

generally Jacob A. Stein, Stein on Personal Injury Damages, § 3.1 (3d. ed. 2018)
15 A-1049-16T1

(discussing history of common law rule and origin of wrongful death statutes), 

the nation's wrongful death statutes derived from an 1846 act of the British 

Parliament known as "Lord Campbell's Act," pursuant to which "[l]oss meant 

only money loss, and money loss from the death of a child meant only his lost 

wages. All else was imaginary. The only reality was the King's shilling." 

Wycko v. Gnodtke, 105 N.W.2d 118, 121 (Mich. 1960). American wrongful 

death statutes borrowed this economic component from Lord Campbell's Act in 

what became known as the "pecuniary loss rule." Stein, § 3.6; see also Beim v. 

Hulfish, 216 N.J. 484, 499 (2014) ("[In 1848], the New Jersey Legislature 

enacted its first wrongful death statute, substantially modeled after Lord 

Campbell's Act.").

The common law did provide a cause of action for "loss of consortium," 

Ekalo v. Constructive Serv. Corp. of America, 46 N.J. 82, 85 (1965), a term 

"encompassing the services of the wife, the financial support of the husband, 

and the variety of intangible relations which exist between spouses living 

together in marriage." Hopson v. St. Mary's Hosp., 408 A.2d 260, 261 (Conn. 

1979). In recent years, several states have expanded the definition of 

"consortium" to apply to other familial or intimate relationships in the wrongful 

death context. See, e.g., Hoesing v. Sears, Roebuck & Co., 484 F. Supp. 478, 
16 A-1049-16T1

480 (D. Neb. 1980) ("[T]he parents, children, and siblings of a deceased person 

may bring a wrongful death action to recover for the loss of consortium due to 

their relative's death."); Williams v. Hook, 804 P.2d 1131, 1138 (Okla. 1990) 

(recognizing a child's right to bring an action for the loss of "parental 

consortium"); Hancock v. Chattanooga-Hamilton Cty. Hosp. Auth., 54 S.W.3d 

234, 236 (Tenn. 2001) (allowing the parent of a decedent to recover for loss of 

"filial consortium"). 

Originally, in New Jersey, the pecuniary loss rule prevented recovery in 

wrongful death actions for what the Supreme Court called "the non-pecuniary 

loss of the society and companionship" of the deceased, which the Court 

analogized to loss of consortium. Russell v. Salem Transp. Co., 61 N.J. 502, 

508 (1972). In Green v. Bittner, however, the Court "isolate[d] from the 

ordinary 'loss of society and companionship' those elements having a distinctly 

pecuniary value." 85 N.J. 1, 18 (1980). After Green, plaintiffs could recover 

the lost value of the decedent's "companionship and advice . . . limited strictly 

to [the] pecuniary element" of such services, as determined by "what the 

marketplace would pay a stranger with similar qualifications for performing 

such services." Id. at 12. Nevertheless, it affirmed that our wrongful death 

statute is "too clear to allow compensation, directly or indirectly, for emotional 
17 A-1049-16T1

loss." Ibid.; see also Beim, 216 N.J. at 502 ("Even when wrongful death 

damages are premised upon non-monetary losses, they are measured by the 

monetary value of the contributions that the decedent would have made to his 

survivors during his or her life had that life not been cut short."). 

Based on our research, it appears fourteen of our sister states similarly 

strictly apply the pecuniary loss rule to preclude recovery for emotional damages 

in wrongful death actions, but allow recovery for the pecuniary component of 
18 A-1049-16T1

lost advice, counsel, or companionship of the decedent through either case law 

or statute.2 3

 

2

 See Mass. Gen. Laws Ann. ch. 229, § 2; N.C. Gen. Stat. § 28A-18-2(b); 

Heimlicher v. Steele, 615 F. Supp. 2d 884, 924 (N.D. Iowa 2009); Keller v. 

Feasterville Family Health Care Ctr., 557 F. Supp. 2d 671, 687 (E.D. Pa. 2008); 

Canavin v. Pac. Sw. Airlines, 196 Cal. Rptr. 82, 86 (Cal. App. 1983); Campos 

v. Coleman, 123 A.3d 854, 868 (Conn. 2015); Carroll Fulmer Logistics Corp. v. 

Hines, 710 S.E.2d 888, 890 (Ga. Ct. App. 2011); Youngquist v. W. Nat'l Mut. 

Ins. Co., 716 N.W.2d 383, 386 (Minn. Ct. App. 2006); Reiser v. Coburn, 587 

N.W.2d 336, 340 (Neb. 1998); Gonzalez v. N.Y.C. Hous. Auth., 572 N.E.2d 

598, 600-01 (N.Y. 1991); Flagtwet v. Smith, 367 N.W.2d 188, 190-91 (S.D. 

1985); Thurmon v. Sellers, 62 S.W.3d 145, 161 (Tenn. Ct. App. 2001); Bowers 

v. Fibreboard Corp., 832 P.2d 523, 526 (Wash. Ct. App. 1992); Knowles v. 

Corkill, 51 P.3d 859, 863-65 (Wyo. 2002). Unlike most states, Connecticut and 

Georgia require wrongful death damages to be evaluated from the point of view 

of the decedent, not of the plaintiff. See Procaccini v. Lawrence & Mem'l Hosp., 

Inc., 168 A.3d 538, 563 (Conn. App. Ct. 2017) (describing factors to consider 

"[r]egarding compensation for the destruction of a decedent's capacity to carry 

on and enjoy life's activities"); Carroll, 710 S.E.2d at 890 ("Since these damages 

are measured from the decedent's point of view, there is no recovery for 

damages, including mental or emotional suffering, experienced by the 

decedent's survivors as a result of the wrongful death."). 

3

 These fifteen states, including New Jersey, that restrict recovery for nonpecuniary loss in wrongful death actions represent the minority legislative 

approach. Thirty-four states have expanded recovery in wrongful death cases 

beyond the pecuniary loss rule to allow recovery for non-pecuniary injury, 

including in many states for emotional loss, mental anguish, grief, or sorrow of 

the plaintiff. See Alaska Stat. § 09.17.010(a); Ark. Code Ann. § 16-62-102(f); 

Colo. Rev. Stat. §§ 13-21-102.5(2)(b), 13-21-203(1)(a); Del. Code Ann. tit. 10, 

§ 3724(d)(5); Fla. Stat. § 768.21(4); Idaho Code §§ 6-1601(5), 1603(1); 740 Ill. 

Comp. Stat. Ann. 180/2(a); Kan. Stat. Ann. §§ 60-1903, 60-1904(a); Me. Stat. 

tit. 18-A, § 2-804; Md. Code Ann., Cts & Jud. Proc. § 3-904(d); Mich. Comp. 

Laws §§ 600.1483, 600.2922(6); Nev. Rev. Stat. Ann. § 41.085(4); N.H. Rev. 
19 A-1049-16T1

Under New Jersey law, in cases involving the death of a child, plaintiffs 

may recover for "the pecuniary value of the child's companionship, including 

his or her advice and guidance, as the parents grow older." Carey v. Lovett, 132 

N.J. 44, 67 (1993). With respect to companionship, "the jury's focus is on the 

existence of [the parent-child] relationship and the value of the advice, guidance 

and counsel that inhere in it." Johnson v. Dobrosky, 187 N.J. 594, 610 (2006). 

"Given a normal parent-child relationship, a jury could very well find it is 

sufficiently probable, had the child lived, that at some point he or she would 

 

Stat. Ann. § 556.12; Ohio Rev. Code Ann. § 2125.02(B)(5); Okla. Stat. tit. 12, 

§ 1053(B); Or. Rev. Stat. Ann. § 30.020(d); Va. Code Ann. § 8.01-52(1); W. 

Va. Code § 55-7-6(c); Wis. Stat. Ann. § 895.04(4); Gast v. Kwak, 396 F. Supp. 

2d 1150, 1154 (D. Haw. 2005); Walsh v. Advanced Cardiac Specialists 

Chartered, 273 P.3d 645, 648 (Ariz. 2012); Ed Wiersma Trucking Co. v. Pfaff, 

643 N.E.2d 909, 911 (Ind. Ct. App. 1994); Giuliani v. Guiler, 951 S.W.2d 318, 

320 (Ky. 1997); Bryant v. Solomon, 712 So. 2d 145, 147 (La. 1998); Coho Res., 

Inc. v. McCarthy, 829 So. 2d 1, 24 (Miss. 2002); Mansfield v. Horner, 443 

S.W.3d 627, 641-42 (Mo. Ct. App. 2014); Hern v. Safeco Ins. Co., 125 P.3d 

597, 608-09 (Mont. 2005); Romero v. Byers, 872 P.2d 840, 844 (N.M. 1994); 

Hopkins v. McBane, 427 N.W.2d 85, 94 (N.D. 1988); Sindelar v. Leguia, 750 

A.2d 967, 971-72 (R.I. 2000); Knoke v. S.C. Dep't of Park, Recreation & 

Tourism, 478 S.E.2d 256, 258-59 (S.C. 2015); Sanchez v. Schindler, 651 S.W.2d 

249, 251 (Tex. 1983); Jones v. Carvell, 641 P.2d 105, 107 (Utah 1982); Hartnett 

v. Union Mut. Fire Ins. Co., 569 A.2d 486, 488 (Vt. 1989). Alabama is the only 

state in which plaintiffs may not recover compensatory damages in wrongful 

death cases, though they may recover discretionary punitive damages linked to 

the wrongfulness of the tortfeasor's conduct, and not to the plaintiff's or 

decedent's losses. See Roe v. Michelin N. Am., Inc., 637 F. Supp. 2d 995, 999 

(M.D. Ala. 2009) ("Alabama is the only State that allows only discretionary 

punitive damages in wrongful-death cases.").
20 A-1049-16T1

have rendered . . . companionship services . . . and advice, guidance and 

counsel[.]" Green, 85 N.J. at 16.

Once the parent-child relationship is established, juries should employ "an 

objective standard for calculating the value of advice, guidance and counsel . . .

confined to what 'the marketplace would pay' for lost household services or the 

services of a business adviser, therapist or trained counselor." Johnson, 187 N.J. 

at 610 (quoting Green, 85 N.J. at 12). "[W]hile pecuniary losses under N.J.S.A. 

2A:31-5 cannot be premised on speculation, an exact calculation of the 

plaintiff's damages may not be feasible in every case." Beim, 216 N.J. at 504. 

Even though the assessment of pecuniary losses from a decedent's death 

may be "burdened with the element of speculation," the Supreme Court has 

instructed that determination of such questions are "not so beyond the common 

knowledge and common experience of jurors as to warrant . . . making expert 

testimony mandatory in such cases." Lesniak, 117 N.J. at 32-33; see also Brown 

v. Kennedy Mem'l Hosp., 312 N.J. Super. 579, 593-94 (App. Div. 1998)

("Expert testimony is not necessary to place a value on prospective services, but 

it is helpful to avoid leaving the jury to conjecture on those values." (emphasis 

added)). 
21 A-1049-16T1

Likewise, in the fourteen states with wrongful death statutes similar to the 

New Jersey Wrongful Death Act, courts have upheld wrongful death damages 

in the absence of expert testimony. See, e.g., Mendoza v. City of W. Convina, 

141 Cal. Rptr. 3d 553, 569 (Cal. Ct. App. 2012) (setting forth basis for sustaining 

wrongful death damages verdict without referencing expert testimony); Consol. 

Freightways Corp. v. Futrell, 410 S.E.2d 751, 753 (Ga. Ct. App. 1991)

(upholding verdict for the loss of the "intangible aspects of the decedents' lives" 

based on "scant" testimony from family members, but not from experts); Evans 

v. FirstFleet, Inc., 345 S.W.3d 297, 304-07 (Mo. Ct. App. 2011) (sustaining 

wrongful death damages based on lay testimony without reciting any expert 

testimony); Walsh v. Morris, 511 N.Y.S. 2d 428, 430 (N.Y. App. Div. 1987) 

(upholding $50,000 wrongful death award despite the fact that the decedent had 

no "earning capacity" and "there was no expert testimony as to the value of her 

services as a homemaker"); Williams v. Monarch Transp., Inc., 470 N.W.2d 751, 

756-57 (Neb. 1991) (upholding damages verdict based on "the history of an 

extraordinary young woman's very remarkable relationship with her parents"); 

Knowles v. State, 49 S.W.3d 330, 340-41 (Tenn. Ct. App. 2001) (upholding 

verdict without mentioning expert testimony where decedent's children had 

testified about their relationship with their father). Indeed, our research has not 
22 A-1049-16T1

revealed any case in these jurisdictions that has required expert testimony to 

establish the pecuniary value of the decedent's advice, guidance, and counsel. 

With this background in mind, we turn to defendant's contention that the 

trial court erred in denying his motion for involuntary dismissal of plaintiff's 

wrongful death claim. We apply the same standard as the trial court in assessing 

whether a motion for involuntary dismissal should have been granted. Hitesman 

v. Bridgeway, Inc., 218 N.J. 8, 26 (2014). Under that standard, "[a] motion for 

involuntary dismissal only should be granted where no rational juror could 

conclude that the plaintiff marshaled sufficient evidence to satisfy each prima 

facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 

196 N.J. 178, 197 (2008); see also R. 4:37-2(b) (providing that a defendant "may 

move for a dismissal of the action or of any claim on the ground that upon the 

facts and upon the law the plaintiff has shown no right to relief[,]" but that "such 

motion shall be denied if the evidence, together with the legitimate inferences 

therefrom, could sustain a judgment in plaintiff's favor"). 

In addressing defendant's motion for involuntary dismissal of the 

wrongful death claim, the trial judge commented, "I do think that there are 

problems that the plaintiff has in proving the quantum of damages for services 

and things of that nature because nothing was presented in those areas[,]" but 
23 A-1049-16T1

permitted the issue to go to the jury because the "concept" was "within the ken 

of the jury." Although the trial court mischaracterized the record in asserting 

that plaintiff had offered "nothing" to support wrongful death damages, we agree 

that plaintiff's wrongful death damages claim was properly submitted to the jury. 

Plaintiff introduced testimony showing that Patrick's death caused the 

"most common class of pecuniary injury[,] . . . the loss of future financial 

contributions[,]" to plaintiff. Johnson, 187 N.J. at 607. Specifically, Patrick 

had been working two jobs prior to his death and was saving money with the 

specific intention to purchase an apartment or house for his mother and possibly 

other family members. Notwithstanding plaintiff's comments that she would 

probably not have accepted any financial contributions from Patrick, the jury 

could still have reasonably inferred that Patrick would have made such 

contributions and that plaintiff was likely to have accepted them. 

There was also ample testimony regarding the companionship services 

Patrick offered to plaintiff. Brandon, Irene, and plaintiff herself testified that 

plaintiff's relationship with Patrick was "definitely one of the important things" 

in her life. Patrick comforted plaintiff with his sense of humor and his displays 

of affection, and gave plaintiff "a whole different outlook on life" with his 

words. The two spoke on a nightly basis and saw each other weekly. Brandon 
24 A-1049-16T1

testified that plaintiff was more likely to seek advice from Patrick than himself, 

because Patrick was better at making plaintiff feel better. 

Viewing, as we must, the evidence in the light most favorable to plaintiff,

we find there was sufficient credible evidence upon which a rational juror could 

conclude that plaintiff had established pecuniary injury. We therefore affirm 

the trial court's denial of defendant's motion for the involuntary dismissal of 

plaintiff's wrongful death claim.

Similarly, we reject defendant's argument that a new trial on damages is 

necessary because allegedly the verdict could only have been based on "pure 

speculation coupled with sympathy, passion and prejudice." "A jury verdict is 

entitled to considerable deference[.]" Risko, 206 N.J. at 521. "A trial court 

should not disturb the amount of a verdict unless it constitutes a manifest 

injustice that shocks the judicial conscience." Carey, 132 N.J. at 66. "The 

appellate role is even more restricted . . . . [and] an appellate court should show 

appropriate deference to the trial court's 'feel of the case.'" Ibid. (quoting Baxter

v. Fairmont Food Co., 74 N.J. 588, 600 (1977)).

Defendant contends that the present case is analogous to Brown, where 

the trial court ordered a new trial on damages and found that the jury's $825,000 

wrongful death damages award was a "runaway verdict," that could only have 
25 A-1049-16T1

been the product of "sympathy, prejudice and passion." 312 N.J. Super. at 592. 

Defendant argues that as in the instant case, the plaintiff in Brown offered 

testimony that the decedent, his forty-nine-year-old daughter, had offered him 

companionship services in addition to housekeeping and clerical services, but 

provided no expert testimony or other specific testimony allowing the jury to 

quantify the monetary value of such services. See id. at 584, 595. 

We find, however, that Brown is distinguishable from the instant case. In 

Brown, the plaintiff also testified that he had been paying for the decedent's 

living expenses prior to her death, leaving the jury "futilely without guidance" 

regarding the ultimate pecuniary value of the services the decedent had been 

providing or the "counterbalancing value of the decedent's living expenses." Id.

at 594. Moreover, the plaintiff in Brown was eighty-six years old, leading the 

court to note that the estimable length of time in which the decedent could have 

been providing plaintiff with companionship or other services "could not have 

been long." Ibid. Accordingly, the panel upheld the order setting aside the 

$825,000 damages verdict, finding it had to have been based on conjecture. Id.

at 595. 

By contrast, in the instant case, plaintiff was not supporting Patrick and 

had a significantly longer life expectancy than the plaintiff in Brown. Moreover, 
26 A-1049-16T1

based on testimony of plaintiff, Irene, and Brandon, the jury could reasonably 

have found the free services Patrick was providing to his mother were equivalent 

to services provided by a therapist or counselor. See Green, 85 N.J. at 14. 

Similarly, the jury could have inferred from the closeness of the familial bond 

that, as plaintiff aged, Patrick was likely to provide services equivalent to that 

provided by a nursing home or caretaker. See id. at 19-20. 

Consistent with longstanding precedent, we hold that plaintiff was not 

required to present expert testimony to establish the pecuniary value of such 

services. See Lesniak, 117 N.J. at 32-33; Green, 85 N.J. at 15-17; Brown, 312 

N.J. Super. at 593-94. The jury was entitled to determine the value of such 

services from lay testimony using its "common knowledge and common 

experience[.]" Lesniak, 117 N.J. at 33. 

Additionally, we note that defendant has provided no evidence that the 

verdict was animated by sympathy, passion, or prejudice. Indeed, the trial court 

twice issued the model jury charge on wrongful death damages, which directed 

the jurors not to consider plaintiff's "emotional distress" or "emotional loss" in 

their deliberations. See State v. Smith, 212 N.J. 365, 409 (2012) ("We presume 

the jury followed the court's instructions."). 
27 A-1049-16T1

For these reasons, we conclude that the trial court properly found that the

jury's award of $500,000 in gross wrongful death damages does not shock the 

judicial conscience.4 See Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 244-

45 (App. Div. 1994) (upholding $436,000 wrongful death verdict where the 

decedent had cared for his wife, the plaintiff, after two surgeries, had prepared 

meals for her, and had offered her "companionship, guidance, advice and 

counsel, all of which had significant pecuniary value"). Giving plaintiff all 

favorable inferences from the testimony presented at trial, we find there is ample 

evidence in the record to support the jury's award. We therefore affirm the final 

judgment and the trial court's order denying defendant's motion for a new trial 

on damages.

C.

In summary, we find no reason to disturb the jury's verdict on liability or 

damages. To the extent we have not specifically addressed any remaining 

arguments raised by defendant, we find they lack sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

 

4

 In upholding this sum, we reiterate that the extent of wrongful death damages 

is fact-sensitive and dependent on the distinct circumstances of each case. See 

Beim, 216 N.J. at 501-04. 
28 A-1049-16T1

Affirmed.